To Swear or Not to Swear: Using Foul Language During a Supreme Court Oral Argument

Abstract

This essay considers the provocative question of whether it is strategically wise for a lawyer to use foul language during a Supreme Court oral argument.

This issue doesn’t come up often. But it does when a lawyer claims his client’s First Amendment rights were violated when the government punished him for using foul language.

If the lawyer doesn’t use his client’s offensive words, he risks conceding that these words are so horrid they warrant suppression. But if he does use the words, he risks alienating justices who find the words unseemly.

The essay uses the “fleeting expletives” case that was recently before the Supreme Court to explore how lawyers navigate this delicate issue. The case concerned a Federal Communications Commission order that found two Fox broadcasts indecent because of foul language.

Did the Fox lawyer use the offensive words in his oral argument? Did he spell out the words in his brief? And what did the FCC lawyers, who wanted the Court to uphold the agency’s indecency policy, do?

Keywords: constitutional law, free speech, foul language, expletives, indecency, oral arguments, Supreme Court

JEL Classification: K4, K19